Issues & views 2007: Wheels of justice grind too slow




Saturday, 29 December 2007, 08:54am

Altantuya Murder Trial©New Straits Times (Used by permission)
by Lee Siew Lian

The Commission of Inquiry into the Lingam video clip could be the best opportunity Malaysia has to restore public confidence in its judiciary and how justice is dispensed, writes Lee Siew Lian.

SINCE September, the catch-phrase on Malaysians' lips has been "Correct, correct, correct", complete with Indian inflection.

Taken from the infamous "Lingam" video clip, the phrase has been turned into a mobile phone ringtone and the eight-minute clip has beeen heavily viewed on YouTube, the video-sharing website, and elsewhere.

If senior lawyer Datuk V.K. Lingam wasn't well known before, he is now, although it hasn't been proven beyond a reasonable doubt that he is the man shown in the clip allegedly brokering judicial appointments.

Lingam TapeAll eyes will be on the commission of inquiry which will report in March on the clip's authenticity and whether any misconduct occurred. Many have called for it to also look into allegations of corruption and cronyism in the judiciary.

However, another aspect of the judicial system needs a review just as urgently.

In the past year, it has become clear that the wheels of justice grind exceedingly slow. In January, for example, the high-profile Altantuya Shariibuu murder trial was set for March 2008 because there were 135 other cases pending.

It was eventually brought forward to June this year before another judge. The accused -- political analyst Abdul Razak Baginda and two policemen -- are luckier men than those in older cases, some who have been detained since 1997.

More than 33,000 people are languishing in jail, many of them juveniles, waiting for trial dates to be set, and for judges to decide on guilt or innocence.

Mid-year, the judiciary came under fresh criticism when it emerged that several judges had failed to write grounds for judgment, holding up the appeals process. In one case, the written judgment came nine years after a verbal decision.

And while judges disposed of some 33,000 pre-2000 cases, a fresh backlog of newer cases built up. Some 790,000 post-2000 cases, criminal and civil, have accumulated over the last three years.

These delays come with a hefty social and emotional cost.

In Foo Fio Na's case, it was a 20-year wait for justice. A quadriplegic, she had in 1999 won a 12-year court battle against Assunta Hospital and one of its surgeons for medical negligence.

It would take five more years for the case to reach the Appeals Court, and another year before the Federal Court made the victory final.

There is also an economic cost -- Malaysia's competitiveness. And when contractual enforcement is lax, businesses find it hard to flourish, the World Bank says.

In "Doing Business 2008", it found that simple debt recoveries took an average 600 days -- 20 months -- in Malaysian courts. In China, it takes 406 days, in Thailand, 479 days, in Singapore, 120 days, and Hong Kong, 211 days.

Businessman Michael Lew would count himself lucky if his cases took 20 months. "A five-year-old case is considered new," he says.

One case, for RM200,000 in payment, has taken eight years in the Sessions Court. Still pending, the interest has snowballed to RM350,000 -- far more than the sum claimed.

The court's files have been lost twice, and the collection of documents has had to be reconstructed, in 2004 and again in August this year.

This is not Lew's only case. Some customers refuse to pay with impunity, knowing such matters can drag on in court, he says.

"On paper, the company is profitable. But when people don't pay, my cash flow is affected. How to do business like this?" he asks.

The toll on his time was substantial. "Ten years ago, I was in court at least one day a week," he says.

These days, his general manager goes for the new cases that are being filed.

Still, he spent a day earlier this month in the Shah Alam Sessions Court testifying in another case, which has been set to continue in March next year.

More than 120,000 civil cases were filed in the Sessions Court -- which deals with amounts under RM250,000 -- between mid-2005 and mid-2006, according to the latest data.

That's an average of 1,539 cases for each of the 81 Sessions judges. To dispose of the cases within a year would mean they would have to hear on average six cases a day, not taking into account the backlog of 108,000 cases.

Already short-handed, courts also lose working days to other matters. Last month, for instance, three Kuala Lumpur Sessions judges postponed two weeks of cases to attend a course for the civil service competence-level examination.

The delays hurt businessmen like Teh Tey Keong, who has already waited almost three years for his RM56,000 suit to be heard for the first time. Filed in 2004, the trial began with his testimony earlier this month.

But he will have to wait until March for the next step, for the defendant -- a company to which he supplied building materials -- to be heard.

His lawyer Loganathean Manickam reckons it will take until the end of 2008 for the case to be decided. Such lengthy waits are normal, he says: "We need more courts and more judges."

The country's judicial system also needs better deployment of resources. Until earlier this year, the courts suffered from recurring vacancies in the superior courts, a cycle caused by the promotions of judges with relatively few years left to retirement.

These gaps, a feature of now-retired chief justice Tan Sri Ahmad Fairuz's tenure, would cascade down to the lower courts when judges are promoted.

Under Fairuz, the last round of promotions has created the largest bench ever at all levels, but the problem at the very top remains. Newly appointed Chief Justice Datuk Abdul Hamid Mohamad has just four months before retirement. He turns 66 in April.

Even with an extension, he would have his hands full restoring public confidence in the creaking judicial system.

Judicial milestones in 2007

- January

Tan Sri Siti Norma Yaakob retires as Chief Judge of Malaya after serving 23 months. Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim transfers 11 judges at short notice, after taking over as Chief Judge of Malaya. He holds the post for another eight months, a move which is later criticised.

The high-profile Altantuya Shariibuu murder trial is set for March 2008, when the judge says he has too many older cases to hear. The case is later transferred to another judge, and brought forward to June.

The Internal Security Ministry says more than 13,000 people being held in jails, including juveniles, are waiting for court judgments, while 20,000 are waiting for court dates to be fixed.

- March

Dr Badariah SahamidThe judiciary is ranked third in integrity, after the health services and legal services industries, in the Malaysian Transparency Perception Survey on the corporate sector.

Academic Dr Badariah Sahamid is appointed a judicial commissioner, triggering criticism from lawyers that she is not eligible. The Bar Council and other bodies renew calls for an independent commission on judicial appointments and later file a suit which goes up to the Federal Court. She continues to hear cases while the matter is being decided.

Sarawak launches the country's first court video and teleconferencing facility, between the Miri and Kuching courts.

- April

Eight judicial commissioners are elevated, bringing High Court judges to 47. The full complement is 57.

- June

Datuk Halijah Abbas is made chief registrar, a post left vacant for eight months

Fairuz says some 790,000 cases filed since 2000 have yet to be disposed of, creating a fresh backlog of cases after the judiciary clears its pre-2000 backlog.

- July

The judiciary comes under fresh criticism following several cases where judges fail to write their grounds for judgment, in some cases up to nine years after a verbal decision, which holds up the appeals process.

Eight High Court judges are elevated to the Appeals Court, the single largest such promotion exercise since 1994 which brings the court to its full complement of 22 for the first time.

- August

Tan Sri Zaki Tun AzmiFederal Court judge Datuk Abdul Hamid Mohamad is appointed Appeals Court president, and fellow judge, Datuk Alauddin Mohd Sheriff, the Chief Judge of Malaya, nine months after Tan Sri Siti Norma Yaakob retired. Lawyer Tan Sri Zaki Azmi is the first to be directly appointed to the Federal Court.

A video clip is released purporting to show a telephone conversation about judicial appointments between a prominent lawyer and a senior judge. The government sets up a three-member panel led by Tan Sri Haidar Mohd Noor to investigate. The lawyer allegedly shown in the video is identified as Datuk V.K. Lingam

- November

Fairuz retires after serving almost five years as Malaysia's top judge. Hamid takes over as acting Chief Justice.

A vegetable seller's death sentence is overturned because the High Court judge who found him guilty took nine years to deliver the judgment.

- December

Hamid takes over as Chief Justice, and Federal Court judge Tan Sri Zaki Azmi is made Appeals Court president.

A commission of inquiry is set up to investigate the purported "Lingam" video clip, following the recommendations of the three-man panel.